Bank of America v. Solow

59 A.D.3d 304, 874 N.Y.S.2d 48

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 24, 2009
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Bernard J. Fried, J.), entered June 12, 2008, awarding plaintiff the principal sum of $15,910,000, on a guarantee, and bringing up for review an order, same court and Justice, entered April 18, 2008, which granted plaintiffs CPLR 3213 motion for summary judgment in lieu of complaint on the aforementioned guarantee and denied defendant’s cross motion to dismiss, unanimously affirmed, with costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed within the appeal from the judgment.

Plaintiff demonstrated its entitlement to summary judgment by establishing the existence of a guaranty and submitting an affidavit of nonpayment (see JPMorgan Chase Bank, N.A. v Complete Envtl. Servs., Inc., 21 Misc 3d 1113[A], 2008 NY Slip Op 52062[U] [Sup Ct, Nassau County 2008]). The guaranty was absolute and unconditional, expressly waived demand or presentment and was expressly made a primary obligation of the defendant, so that no formal demand, beyond the motion in lieu of complaint itself, was necessary to state a cause of action on the guaranty (cf First Natl. Bank of Waterloo v Story, 200 NY 346, 354 [1911]). Recourse to CPLR 3213 was appropriate, since the guaranty was “an instrument for the payment of money only” (CPLR 3213). The fact that the obligations guaranteed were evidenced in a series of underlying mortgages and modifications did not alter this fact, where the amount due was stipulated, and thus plain on the face of the document (see European Am. Bank v Lofrese, 182 AD2d 67, 71 [1992]). Concur—Gonzalez, J.P., Sweeny, Renwick and Freedman, JJ. [See 19 Misc 3d 1123(A), 2008 NY Slip Op 50830(U).]